Pezzino v The Queen
[2001] WASCA 256
•24 AUGUST 2001
PEZZINO -v- THE QUEEN [2001] WASCA 256
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 256 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:21/2001 | 17 JULY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J McKECHNIE J | 24/08/01 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissedAppeal against sentence allowed | ||
| B | |||
| PDF Version |
| Parties: | BRETT COLIN PEZZINO THE QUEEN |
Catchwords: | Criminal law Criminal responsibility Blow to head Whether resulting actions independent of the exercise of will No new principles Turns on own facts Sentence Whether excessive Relevance of head injury |
Legislation: | Criminal Code (WA), s 23 |
Case References: | Fleming v The Queen (1998) 197 CLR 250 Jones v The Queen (1997) 191 CLR 439 The Queen v Falconer (1990) 171 CLR 30 Cameron v The Queen (1990) 2 WAR 1 Coates v The Queen (1957) 96 CLR 353 Cooper v McKenna; ex parte Cooper [1960] Qd R 406 Gordon (1994) 71 A Crim R 459 Haggie v Meredith (1993) 9 WAR 206 Hall (1988) 36 A Crim R 368 Lowndes v The Queen (1999) 195 CLR 665 Postiglione v The Queen (1997) 189 CLR 295 R H McL v The Queen (2000) 174 ALR 1 R v Quick; R v Paddison [1973] 1 QB 910 R v Stripp (1978) 69 Cr App R 318 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PEZZINO -v- THE QUEEN [2001] WASCA 256 CORAM : MALCOLM CJ
- ANDERSON J
McKECHNIE J
- CCA 22 of 2001
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Criminal responsibility - Blow to head - Whether resulting actions independent of the exercise of will - No new principles - Turns on own facts - Sentence - Whether excessive - Relevance of head injury
Legislation:
Criminal Code (WA), s23
Result:
Appeal against conviction dismissed
(Page 2)
Appeal against sentence allowed
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr R E Cock QC
Solicitors:
Appellant : Gunning Barristers & Solicitors
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Fleming v The Queen (1998) 197 CLR 250
Jones v The Queen (1997) 191 CLR 439
The Queen v Falconer (1990) 171 CLR 30
Case(s) also cited:
Cameron v The Queen (1990) 2 WAR 1
Coates v The Queen (1957) 96 CLR 353
Cooper v McKenna; ex parte Cooper [1960] Qd R 406
Gordon (1994) 71 A Crim R 459
Haggie v Meredith (1993) 9 WAR 206
Hall (1988) 36 A Crim R 368
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
R H McL v The Queen (2000) 174 ALR 1
R v Quick; R v Paddison [1973] 1 QB 910
R v Stripp (1978) 69 Cr App R 318
(Page 3)
1 MALCOLM CJ: This was an appeal against the appellant's conviction after trial before a Judge alone on 19 January 2001 for stealing a motor vehicle with a circumstance of aggravation, namely, that he wilfully drove the motor vehicle in a manner that constituted an offence under s 60 of the Road Traffic Act 1974 (WA), namely, reckless driving. The appellant elected to be tried by a Judge without a jury and the Crown consented to this course. The appellant also made an application for leave to appeal against the sentence of imprisonment of 3½ years imposed upon him for the offence with eligibility for parole.
Appeal against conviction
2 The grounds of appeal as amended are set out in the reasons to be published by McKechnie J. As his Honour has pointed out, the sole issue at the trial was whether the Crown had satisfied the learned Judge beyond reasonable doubt that the acts or omissions constituting the elements of the offence had not occurred independently of the exercise of the will of the appellant who had raised the defence of non-insane automatism.
3 The elements of the offence were that, first, the motor vehicle was the property of the complainant; secondly, the appellant used the motor vehicle in the sense of driving or otherwise assuming control of it without the consent of the owner and/or the person in charge thereof; thirdly, did so without legal authority, justification or excuse; and, fourthly, having assumed control of the vehicle, wilfully drove it recklessly. As McKechnie J has pointed out, the evidence of what occurred was not in dispute. The sole issue at the trial was whether the Crown had discharged the burden of proof beyond reasonable doubt that the defence raised under s 23 of the Code did not apply, in the sense that the learned Judge was entitled to be satisfied beyond a reasonable doubt that the actions of the appellant were voluntary and had not occurred independently of the exercise of his will.
4 The appellant's own evidence was that, on the night of 3-4 June 1999 he and his friend, a Ms D'Orsogna, had taken some prescription pills, namely, Deloxene and Valium. He could be no more precise as to the quantity than to say a "handful". He also described having taken some amphetamines in the morning of the previous day. He said that he had smoked some cannabis during the day and may well have also smoked cannabis after taking the pills. He said he had a very sketchy recollection of events after taking the pills the previous night. His recollection consisted only of going for a drive. On the following day, the day of the offence, he recalled being in the car after the crash. He could recall later
(Page 4)
- being at the hospital and hearing the words "call security". He also said that he could recall driving down Kalamunda Road with a police car next to him and that he was trying to wipe blood out of his eyes. His last recollection was waking up in the hospital under restraint and asking for food.
5 His physical injuries were described as being a 5 cm x 3 cm flap laceration to the forehead, a flap laceration on his chin, a laceration on his lip and fractured front teeth. It was not disputed that the injury to his forehead had been caused in the first accident when he was a passenger in a car driven by Ms D'Orsogna. That accident occurred earlier in the morning of 4 June 1999 when he sustained an injury to his head. He was conveyed by ambulance to the Armadale-Kelmscott Hospital. A short time after his admission to hospital, he became agitated and abusive. He removed an intravenous drip from his arm, took off his cervical collar and left the hospital dressed only in a pair of hospital-issue pyjama pants. He left the hospital by the rear entrance where a delivery van had just pulled up and the driver had got out leaving the engine running. The appellant got into the van, locked the door and drove away. He later became involved in a high speed chase with police which ended when he crashed the van at low speed into another vehicle in the Midland area.
6 The appellant's case at the trial was that, as a result of the blow to the head sustained in the first accident, he was acting involuntarily (ie, in a state of automatism) when he absconded from the hospital and was involved in the high speed chase. Such a case raises a defence that the actions performed by the accused which are alleged to constitute the offence or offences charged occurred "independently of the exercise" of the accused's will for the purposes of s 23 of the Criminal Code: The Queen v Falconer (1990) 171 CLR 30. In such a case the onus is on the prosecution to disprove non-insane automatism beyond a reasonable doubt. Section 23 of the Code relevantly provides that:
"Subject to the express provisions of this Code relating to negligent acts or omissions, a person is not clinically responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."
7 In Falconer at 37 - 39 Mason CJ, Brennan and McHugh JJ accepted that an offence of murder could only be committed by a willed act. In Falconer the relevant act was the discharge by Mrs Falconer of the loaded gun. In the present case the relevant acts constituting the stealing of the
(Page 5)
- motor vehicle involved using the motor vehicle without the consent of the owner or person in charge of it, and doing so unlawfully, namely, without lawful justification or excuse. These acts were required to be willed acts under the first limb of s 23. The circumstances of aggravation involved the driving of the motor vehicle "wilfully … in a manner that" constituted the offence of reckless driving contrary to s 60 of the Road Traffic Act 1974 (WA). The particular acts relied upon in this context were also required to be willed acts under the first limb of s 23 of the Code.
8 Three medical witnesses were called to give evidence on behalf of the appellant. Dr Hayward, a neuro-psychologist, gave evidence that neuro-physiological testing can reveal the existence of trauma that would not be measurable by instruments such as CT scans, EEGs or MRIs. It was possible for a mild head injury to result in alterations in consciousness. The appellant's glasgow coma score, existence of post-traumatic amnesia and the neuro-psychological testing profile were consistent with a person having suffered a "mild head injury". The appellant's test profile was consistent with injury to the left hemisphere of the brain and was very consistent with the profile in other persons having suffered a mild to moderate head injury. The nature of the testing was such that it would be very difficult for the appellant to have manipulated the results. The test profile was not consistent with a person suffering cognitive dysfunction as a result of drug use, because the effects of drug use tend to be global rather than material specific, as was the case in the appellant's profile. The appellant's behaviour was consistent with somebody suffering post-concussional symptoms, although the post-traumatic amnesia went on longer than would be expected from concussion. Dr Hayward concluded that the appellant had been acting in an acute confusional state where a person "is not aware of the nature and quality of their act at the time they are doing it". So far as the ingestion of drugs by the appellant was concerned, Dr Hayward readily admitted that she was not an expert in this field, but would expect that the use of drugs would have been an additional factor. The combination of the head injury and the drug use would have been likely to work together.
9 Dr Oleh Kay also attributed the appellant's behaviour to the head injury. It was consistent with that observed on persons with a mild to moderate head injury. The delay between the trauma and the onset of behavioural changes was consistent with the head injury, but not consistent with drug use. The use of drugs would have been a contributing factor, but not the explanation for his behaviour. The effects of drug use would have been to make him more susceptible to the effects of a blow on the head. Dr Kay described the appellant's behaviour as
(Page 6)
- resulting from an acute confusional state. In such a state, a person is not in control of their own actions. Dr Kay's ultimate conclusion was that the appellant's behaviour was caused by a combination of head injury and drug use, but it was predominantly the head injury. Dr Kay said that the description of the appellant of his lack of memory from the time of taking benzodiazepines the previous night and waking up in hospital the next day was consistent with intoxication from those drugs. Dr Kay agreed that the appellant's behaviour and an absence of recollection could be entirely consistent with a drug-induced confusional state. He was also of the opinion that, the absence of any recollection from the time of taking the drugs the previous night and waking up the next day, was more likely to be a result of drug intake, although, "post-grade amnesia" is more significant after a head injury.
10 Dr Joyce, an Associate Professor of Pharmacology, said that, so far as benzodiazepine was concerned, it had a sedating effect and was not consistent with the appellant's behaviour the following day. So far as memory was concerned, Dr Joyce stated that a person will typically be unable to remember events occurring after an overdose of those drugs. Ten hours after the ingestion of the drugs, a person would be able to remember vivid events occurring after they awoke. In Dr Joyce's opinion, the appellant's behaviour at the hospital would not be consistent with cannabis intoxication which has a sedating effect. As against that, the appellant's behaviour was consistent with a person acutely intoxicated with amphetamines. If, however, the appellant had a single dose of amphetamines approximately 24 hours prior to the onset of that behaviour, the excitable state would be likely to have worn off. The behaviour exhibited by the appellant would be more likely to be expected in a person who was a heavy, ie, a daily, user of amphetamines. Benzodiazepine and cannabis use tends to offset or counteract amphetamine intoxication. Amphetamine use does not typically interfere with memory. Dr Joyce qualified the opinions he expressed by reason of the fact that he was unaware of the quantity of drugs taken by the appellant. Significantly, however, he said that the absence of recollection after the occurrence of the car accident (ie, the accident in the morning which led to the appellant being taken to hospital) would be unlikely to be due to the effects of the ingestion of benzodiazepines.
11 Dr Pullela, a psychiatrist, gave evidence on behalf of the Crown. He was also of the opinion that the appellant's conduct was consistent with an acute confusional state. He classified the head injuries sustained by the appellant as mild and described them as "secondary". He was of the opinion that the effects of the benzodiazepines themselves could have
(Page 7)
- produced the behaviour exhibited at the hospital and after the appellant left the hospital. He was of the opinion that the appellant presented with an acute confusional state complicated by mild head injury, but said that the head injury itself was not significant enough to produce that kind of confusional state. He could not say that the acute confusional state was solely drug-related because the head injury was a complicating factor. Dr Pullela agreed with Dr Joyce that the effects of taking benzodiazepines and cannabis after taking amphetamines would be cumulative rather than negating or limiting.
12 Significantly, Dr Pullela was of the opinion that a person in an acute confusional state had the capacity to carry out goal-directed activities, such as locking the door of the delivery van and running away from the police. While the head injury was a compounding or additional factor, the drug use took precedence as an explanation for the appellant's behaviour and for his absence of recollection.
13 It is significant that after the morning accident and the ambulance was called to the scene, the appellant provided a false name to the ambulance staff. At the material time the appellant was the subject of an enquiry into alleged burglary offences. This suggests that he was sufficiently aware of what he was doing at the time to be able to provide an alias. Secondly, the fact that he was the subject of an enquiry in relation to burglary offences provided him with a motive to abscond, although it must be said that it was not clear whether it was the appellant or Ms D'Orsogna who provided the false name at the hospital. Further, there was some medical evidence to the effect that there is commonly a period of lucidity following a head injury before the onset of erratic behaviour. Dr Pullela's evidence was that engaging in goal directed behaviour was not necessarily inconsistent with acting in a state of automatism.
14 The evidence of a dissociative state was based primarily on the appellant's alleged inability to recall the relevant events. The learned trial Judge did not accept the appellant's evidence of his lack of recollection. This was a finding based upon his assessment of the credibility of the appellant. It was a finding which was open on the evidence.
15 The Theatre Sister Ms Dyson gave evidence that she dealt with the appellant on his arrival at the hospital. His clothes had been cut off him at the scene of the morning accident. According to Sister Dyson the appellant was aware that he was naked. He was very quiet but his blood pressure was normal. She cleared blood off his face. The appellant
(Page 8)
- thanked her for helping him. She then put an intravenous drip into his arm. This can be painful. The appellant became agitated. He did not like the drip. As she described it:
"He wanted to get off the trolley. He subsequently took his cervical collar off … pulled out his IV line and got up off the trolley and went to leave the department."
17 McKechnie J has set out the evidence of the Emergency Doctor, Dr Hodgkinson. Significantly, his conscious state was reported as "alert and oriented, although he was reluctant to answer questions and disclose personal information. On arrival he was lying quietly. His eyes were open and speaking at times, although refusing to answer questions when directed at him". The doctor did say, however, that:
"When he did answer the questions, his answers varied between appropriate and seemingly confused."
18 In my opinion, the evidence of his behaviour to that point did not indicate that the appellant's conduct was consistent with a state of automatism, although there was some degree of confusion. Further, the evidence of his actions in stealing the motor vehicle and driving it over the distance and in the manner described by McKechnie J was behaviour which required a series of cognitive decisions, or, as Dr Pullela put it, "goal directed activities". These not only included locking the door of the delivery van and running away from the police, but also the many driving actions he performed in the stolen vehicle, including actions to avoid apprehension when he became aware of being chased by the police car driven by Constable O'Byrne on Tonkin Highway, Hale Road, Hawtin Road, Kalamunda Road and Midland Road, sometimes at speeds of about 140-150 kph. Finally, he drove through a stop sign at the intersection of Swan Road and East Street, narrowly missing traffic, and finally driving on the incorrect side of East Street when he crashed head-on into an oncoming vehicle. He then jumped out and ran away, running about 25 m before he was apprehended.
19 I agree with McKechnie J that the actions of the appellant were not suggestive of automatic behaviour independent of the exercise of his will
(Page 9)
- and, as a consequence, involuntary and performed while in a state of automatism. While there was some degree of confusion on the part of the appellant leading to a degree of irrational behaviour, I agree that it was open to the learned Judge to be satisfied beyond a reasonable doubt that his relevant actions were not involuntary as having been performed in a confusional state or a state of automatism, but were voluntary willed acts which he deliberately chose to do.
20 For these reasons I would dismiss the appeal against conviction.
Application for leave to appeal against sentence
21 In my opinion the applicant should be granted leave to appeal against the sentence of imprisonment for 3½ years imposed by the learned Judge, the appeal allowed, the sentence of imprisonment for 3½ years set aside and substituted by a sentence of imprisonment for 2½ years. The order for eligibility for parole should remain. I have reached these conclusions for the reasons to be published by McKechnie J.
22 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of McKechnie J with which I agree and to which there is nothing I wish to add.
McKECHNIE J:
Introduction
23 This appeal against conviction is on the basis that a verdict of conviction for stealing a motor vehicle, with the aggravated circumstance of reckless driving, was unsafe and unsatisfactory because the Crown could not disprove that the appellant was in a state of automatism at the time. There is also an application for leave to appeal against sentence.
The indictment
24 The appellant was charged on indictment that:
"On 4 June 1999 at Kelmscott BRETT COLIN PEZZINO stole a motor vehicle registration number 8ZI-905 the property of AQUA TERRA OIL AND MINERAL SERVICE AND SUPPLY PTY LTD trading as ATOM SUPPLY
(Page 10)
- AND THEN wilfully drove the motor vehicle in a manner that constituted an offence under section 60 of the Road Traffic Act, namely reckless driving."
Facts not in dispute
25 The appellant elected to be tried by a Judge without jury. The Crown consented to this course.
26 The learned trial Judge identified the essential elements of this offence as follows:
"The essential elements of the offence are that:
1. the motor vehicle referred to was the property of the complainant.
2. the accused used the motor vehicle (drove or otherwise assumed control of it) without the consent of the owner and/or the person in charge thereof.
3. the accused did so unlawfully - that is without legal authority, justification or excuse.
4. having assumed control of the vehicle the accused wilfully drove it recklessly."
- (a) The admission to hospital
27 The non-contested evidence was that at about 8.30 am on 4 June 1999 the appellant was a passenger in a vehicle driven by his girlfriend Chrissoula D'Orsogna. They had an accident. The appellant was taken by ambulance to the Armadale-Kelmscott Hospital and admitted through the emergency department under a false name, Mario Browne.
28 A nurse took a reading of the appellant's blood pressure which she considered appropriate, and then commenced to insert an IV drip. Subsequent to the insertion of the IV drip the appellant became agitated, removed the cervical collar which had been previously applied, pulled out the IV line, and got off the trolley. He was naked. He put on some clothes and left the emergency room.
(Page 11)
- (b) The circumstances of the offence
29 At the same time the appellant was anxious to leave the hospital it so happened that a courier was making a delivery of goods. She alighted from her vehicle to speak to another courier. She saw the appellant approaching who was being counselled by a hospital orderly to return to the ward. Instead of returning quietly however, the appellant jumped into the courier's vehicle, locked the door, started it and drove off.
30 The appellant was soon pursued by police with flashing lights and sirens on. He drove recklessly until colliding head on with another car. He ran away from the crash but was apprehended nearby.
The issue at trial
31 The sole issue at trial was whether the Crown had satisfied the Judge beyond reasonable doubt that the provisions of the Criminal Code s 23 did not apply.
32 In more common terms the appellant asserted that at the time of the offence there was evidence, which the Crown could not disprove, that he was suffering from a form of non-insane automatism due to the blow on the head from the earlier accident so that his subsequent actions were independent of the exercise of his will.
The issue on appeal
33 The Judge was satisfied that the actions of the appellant were deliberate and conscious and that the Crown had discharged its burden. He convicted the appellant.
34 The amended grounds of appeal are:
"1. The verdict was unsafe, unsatisfactory and against the weight of the evidence.
PARTICULARS
(a) The weight of medical opinion was that the head injury alone was sufficiently serious to raise the defence of automatism.
(b) The weight of medial opinion was that the head injury was the predominant cause of the Appellants' (sic)
(Page 12)
- behaviour and that his drug intake was an additional or complicating factor.
- (c) Neuropsychological testing revealed a profile that was consistent with head injury rather than drug abuse.
2. The learned trial Judge erred in his assessment that the Appellants' (sic) credibility was lacking because his failure to recall his activities between injesting (sic) drugs the previous night and waking the next morning could not adequately be explained by either his reported drug intake or his head injuries.
PARTICULARS
(a) There was no evidence given as to what the Appellants' (sic) activities were in this time period against which to judge his reported lack of recollection.
(b) The evidence from Doctor Joyce was that his reported use of Benzodiazopenes (sic) would not effect (sic) his memory of vivid events occurring after he had awoken.
(c) The learned trial Judge erred in his assessment that the Appellant did not accurately report his drug use given that there was no independent evidence to establish what his drug use was and that the Appellant himself had volunteered this information.
3. The learned trial Judge erred in holding that the defence of automatism was not available by reasons of the provisions of section 27 of the Criminal Code relating to self-induced intoxication.
4. The learned trial Judges' (sic) finding that the Appellants' (sic) actions were voluntary was not supported by the evidence.
5. His Honours' (sic) finding that the Appellants' (sic) actions were voluntary inconsistent with his finding that the Appellants' (sic) behaviour had been substantially the result of self--induced intoxication and with His Honours' (sic) acceptance of the evidence of Doctor Pullela."
(Page 13)
- PARTICULARS
(a) The evidence of Doctor Pullela, which was accepted by the learned trial Judge was that the primary reason for the Appellants' (sic) behaviour was his use of drugs, but that the head injury was a contributing factor.
(b) If the head injury was a cause of the Appellants' (sic) behaviour, then the defence of automatism should nonetheless be open, even if it is not the primary cause or is not of itself sufficient to raise a defence of automatism."
35 The proper test for a Court of Criminal Appeal is to determine whether the verdict was open on the evidence: Jones v The Queen (1997) 191 CLR 439. This test is applicable to trials by a Judge without jury: Fleming v The Queen (1998) 197 CLR 250. Unlike a jury whose verdict is inscrutable, a trial Judge is required to give reasons for his or her decision: Criminal Code s 651B(2).
36 The resolution of the appeal turns on the medical evidence as to the possible head injury and on evidence of the appellant's ingestion of drugs in the hours preceding the first accident and whether they had any effect. The objective evidence of the appellant's behaviour is also important.
The Theatre Sister Ms Dyson
37 She gave evidence that the appellant was naked on arrival because his clothes had been cut off him at the scene of the accident. He knew he was naked. The appellant was brought into the resuscitation room.
38 Initial observations were that the appellant was very quiet. His blood pressure was fine when it was taken. He was lying quietly. There was some blood on his head and face which the nurse proceeded to clean.
39 While this was happening the appellant was very quiet and thanked the nurse for helping him.
40 The nurse then put an IV drip into his arm, a procedure which can be quite painful. She described when that happened:
"He became agitated. He didn't like the IV in his arm. He wanted to get up off the trolley. He subsequently took his cervical collar off which was on to immobilise the neck when
(Page 14)
- he arrived, pulled out his IV line and got up off the trolley and went to leave the department."
41 The doctor on duty, Dr Hodgkinson called for security. At that point, according to the nurse, the appellant appeared to become more agitated.
42 When the appellant put his jacket on he still had monitoring pads on his shoulder and left chest. The IV line remained attached to his arm by a needle, though he pulled the line from the drip. He swung his arms around and hit the nurse.
The Emergency Doctor, Dr Hodgkinson
43 The doctor's unchallenged observations were:
"I met the ambulance at the ambulance entry to the emergency department and followed the stretcher through to the resuscitation room, which is located in the centre of the emergency department. I assessed him and found that all his vital signs, which include blood pressure and respirations, were all intact. He did have a slightly high heart rate. His chest was non-tender without bruising and his conscious state was reported as alert and oriented, although he was reluctant to answer questions and disclose personal information. He did tell me that he'd used drugs in the 6 hours prior to presentation…
… examination revealed some lacerations on his forehead. There was a three by five-centimetre laceration on his forehead. There was also a broken tooth, a laceration on his lip and on his chin as well, and these injuries would be consistent with having been in a motor vehicle accident. An intravenous line was inserted by Ms Dyson and he was given some intravenous fluids on precaution due to his high heart rate and possibly due to blood loss. He did have some blood tests sent - just some basic screening tests for trauma patient. It showed, among other things, a blood alcohol concentration of less than .01 per cent, which is usually regarded as a negative for blood alcohol."
44 The appellant refused to tell Dr Hodgkinson which drugs he had taken.
45 The doctor described the appellant's demeanour on arrival:
(Page 15)
- "He was lying there quietly. His eyes were open. He was moving his limbs spontaneously and he was speaking at times, although refusing to answer questions when directed at him. When he did answer the questions, his answers varied between appropriate and seemingly confused.
… He laid there quietly enough for us to manage what we call a full survey of the body, and those were the only injuries that I could find on him."
46 He also described the head injuries in greater detail:
"They were superficial - what we call soft tissue injuries involving skin and possibly muscle underneath. I couldn't identify any bony injury at all just on visualising the patient. He would have needed x-rays to identify any other bony injuries."
47 The agitation was described as follows:
"… well, during the insertion of the intravenous line, the patient did become agitated, certainly moving his arms around, not complying with - staff requested he lie still and be properly assessed in the fullness of time. Despite our encouragements, he got off the resuscitation trolley, removed his cervical collar, removed his intravenous line and proceeded to try to remove himself from the resuscitation room in the emergency department.
… Certainly myself and Ms Dyson attempted to prevent him from doing so but we try not to physically restrain patients if we are without any other assistance."
48 The wound to the forehead was a flap laceration 5 cm by 3 cm. The lacerations were consistent with trauma to the head.
The evidence of the driving
49 Constable O'Byrne's evidence was that he saw the appellant driving the utility north on Tonkin Highway. He activated his flashing emergency lights and siren and commenced pursuit. The utility travelled at 130 kph along Hale Road into Hawtin Road with the appellant driving to the incorrect side of Hawtin Road and accelerating away from the police officer. The utility continued to drive in a reckless manner onto the incorrect side of the road causing on-coming traffic to take evasive action.
(Page 16)
- It turned into Kalamunda Road onto the incorrect side for several hundred metres. It drove into Midland Road where police vehicles had the emergency lights and sirens activated and the chase was continuing at about 140 to 150 kph. The appellant drove through a stop sign at the intersection of Swan Road and East Street, narrowly missing traffic, and then continued on the incorrect side of East Street before crashing head-on into another vehicle. The appellant ran away but only for about 25 metres before apprehension.
The evidence of the appellant as to his recollection
50 The appellant gave evidence that:
"… It was the day of the accident so I can remember at the scene of the accident. I can remember, I think, the car laying on its side and my friend Crystal was sort of, like, leaning in through the - through one of the car windows sort of like stroking my face, like trying to reassure me that everything was okay, and sort of like just a really sketchy memory sort of thing. The next time was at Armadale-Kelmscott Hospital, I believe.
…
So what's your next recollection after the - after the car lying on its side?---I was at a - I was - what I suppose I realised then - I was at a hospital and I can remember sort of like trying to fend off nurses I suppose you could say. That's how it appeared to me at the time, I think, and someone yelling out, 'Call security, call security' and then that's about - that's about it, sort of thing, from the hospital.
…
Do you recall leaving the hospital?---No.
Okay. What's your next recollection after that then?---I have like a pretty good - I'm pretty good with the metro area, so at the time I can specifically remember driving down Kalamunda Road on the - whether or not I realised at the time whether or not I was on the wrong side of the road but I can remember sort of like driving with my arm up down Kalamunda Road sort of with the police car on my left-hand side sort of driving next to me which was probably on the right side of the road and - yeah,
(Page 17)
- so I can sort of remember driving down Kalamunda Road with a police car which was probably on the right side of the road following me.
Okay. What else can you recall about driving?---Nothing. I think - I think I was trying to wipe blood away from my eyes. I sort of - I was bleeding a bit so at the time I think I was like trying to keep my vision clear by wiping the blood away that was dripping down into my eyesight, sort of thing.
What's your next recollection after that?---Waking up at Royal Perth Hospital. …"
51 The trial Judge rejected the appellant's evidence as to lack of recollection.
The expert medical evidence
52 The appellant called a number of witnesses whose evidence was summarised by the trial Judge in his reasons for judgment. Dr Hayward was a neuro-psychologist. She gave evidence that the appellant exhibited signs consistent with a mild moderate head injury.
53 Dr Oleh Kay gave evidence that in his opinion the behaviour of the appellant on the day in question was attributed to: "The head injury, the blow on the head."
54 Dr Joyce, an Associate Professor of Pharmacology, gave evidence as to the general effect of drugs on the human body, particularly Benzodiazepine and Doloxene.
55 The Crown in response called Dr Pullela, a psychiatrist.
56 All medical witnesses agreed that on the day in question the appellant's behaviour was consistent with a person in a confused state. The point of dispute was the cause of that confused state. In summary, the appellant's case was that the head injury was the cause of the confusion although the ingestion of drugs may have exacerbated the effect. The Crown case on this aspect relied solely on Dr Pullela's evidence. His evidence was that although the head injury was a contributing cause, the prime reason for the confusional state was the ingestion of drugs.
(Page 18)
The Criminal Code s 23
57 Section 23 relevantly provides that a person is not criminally responsible for an act which occurs independently of the exercise of his or her will. If there is a possibility raised on the evidence that a person's actions were independent of the exercise of will, the Crown must disprove the possibility beyond reasonable doubt.
58 In this case, although there was unanimous agreement among the experts as to a confusional state in the appellant (though disagreement as to its cause), the issue confronting the trial Judge was not whether the appellant was acting in a state of confusion, but whether the appellant's actions were deliberate and conscious. The issue was not whether the appellant was suffering from a degree of mental impairment such to trigger the Criminal Code s 27.
59 Dr Hayward did not at any stage give evidence that the result of the blow to the head would cause a person to act independently of the exercise of their will. What she said was:
"… Someone in that state would find it difficult, for instance, to determine between ideas that were generated internally and what they were seeing externally, so that's where you often see like paranoia and so on because they're not sure what's going on. Their brain isn't working in a concerned smooth manner so all sorts of strange ideas or perceptions might come and unfortunately what also can happen is that all sorts of impulses can be acted upon because the normal inhibitory processes don't jump in and stop them.
…
Can you just explain what you mean by that passage?---The person doesn't have - a person in an acute confusional state doesn't have control over their behaviour. Their brain isn't working well, they are not receiving information in a reliable or regular way from their environment. They are not able to discern what's happening to them internally, they are erratic. Their memory of what's going on from one moment to the next may come and go and so they behave in an erratic way and as I said before, people who are not in trouble but have had an accident of some sort will often report distress over their behaviour that they have been told they come out with whilst in that state in the initial early stages. They usually have no recall
(Page 19)
- of it at all so that's even more distressing they're going on what other people are telling them."
60 Dr Kay was asked:
"What kind of behaviour can a blow on the head cause somebody to engage in?---Normally people become confused, disorientated, argumentative, difficult to reason with, at times mimicking the effects of moderate to extreme intoxication with alcohol. Irritability tends to be a marked phenomena."
61 Dr Kay did not give evidence that the actions of the appellant may have been independent of the exercise of his will as a result of the head injury, although he did say that a confusional state may be characterised by disorientation in space and time.
62 Dr Joyce gave specific evidence in relation to the ingestion of Benzodiazepine, the effect of which is to put someone to sleep and in some respects cancel out the effects of amphetamines.
63 Dr Pullela was the only witness who spoke in terms of automatic behaviour. He said:
"… the clinical state he presented with next day at the hospital clearly indicated he was bizarre, he was excited, he was highly aroused, he was suspicious and so on, so that is clearly typically transient confusion, an actual confusional state. Now, this man - he suddenly realised he was naked. He got very distressed and dressed himself up, acquired a vehicle and then he took off, but at the same time he was able to realise that he was being pursued by the police or chased by the police, so that's what I am concerned. This is some automatic behaviour certainly but this is clearly a drug autonomism, a drug-induced confusional state where it is an unconscious, perhaps an involuntary, act but it is well directed, otherwise he would have not ran off from the hospital, so that's what I'm concerned. I think this man has presented with an acute confusional state complicated by mild head injury but you cannot say the head injury is mild enough not to produce such a significant confusional state. Now, people in confusional state also present with what you call periods of lucidity and normality. They can function quite normally for a few seconds, few minutes, and then they cannot."
64 His evidence further was:
(Page 20)
- "… I think his behaviour he presented with - it is different. I mean, he is fully aware of what was happening. He found himself naked, for example, as I mentioned a few moments ago, dressed himself, acquired a vehicle and ran. He has made himself aware that the trouble - he is being pursued or followed with it, this all bold, directed activity which you could expect even in a confusional state that Dr Kay mentioned. There is a confusional state where people can experience periods of normality, what you call periods of lucidity, and he was fully aware of what he was doing at the time and he was able to do all these things and he was able to run off, so these are definitely the effects of a confusional state. Okay. Head injury will come into question in this case if it had been serious. It is not. It is not the case at all. Absolutely there is no clinical or objective evidence that I will accept, the lacerations to his head or blow to the head - not even true by other investigations, so clearly I will attribute this is a drug-induced automatic state. In fact I won't even say 'unconscious, involuntary'. He was conscious at the time when he was doing all these things, otherwise he would have not been able to drive the vehicle.
Yes, yes, and his recollection therefore when he is, for example, driving along, seeing the car behind him, is very much a conscious action of driving but it's also a conscious action of him being able to comprehend that the police are chasing him?---Absolutely, absolutely."
65 That evidence is, with respect, capable of causing confusion and is internally inconsistent.
66 However, Dr Pullela clarified his evidence in answer to a question from the Judge as follows:
"Perhaps before I call on Mr Young [who appeared for the appellant at trial], the accused got into a vehicle which was in the parking area of the hospital which obviously had a key in the ignition. When he got in, he locked the door before driving off in it and then when he eventually had the accident after being pursued by the police, he ran from the vehicle. What if anything did those things tell you, that he locks the door having got into the vehicle?---Clearly, sir, I mean, you know, this man was clearly aware of what he was doing at the time, that he might have been still mildly confused or whatever but, you
(Page 21)
- know, for someone - this what I call a goal-directed activity. He was able to get into the car, lock himself up and when he was pursued by the police, able to stop the car, open the door and run, so he was obviously very conscious of what he was doing and, if you like, he had sort of an intent to run away from the police when he was pursued by the police, so it is differently - people, even in the confusional state, can carry out goal-directed activities. That's why if you look at the clear legal definition of autonomism, it's an unconscious, involuntary activity - maybe with intent, maybe without intent, and so in this case clearly what he was doing he was fully aware of."
67 The factual findings by the trial Judge are as follows:
"23 As I have already indicated I do not accept the accused's evidence as to his lack of recollection of events occurring both before and subsequent to the first accident. I have no doubt that his ingestion of illicit substances was more extensive than indicated by him in evidence, and refer particularly to his statement at the Armadale/Kelmscott Hospital that he had ingested drugs in the six hour period prior to admission.
24 I am not persuaded on all the evidence that the accused suffered a head injury of such consequence that it would in isolation have been productive of inappropriate behaviour on his part.
25 I am satisfied beyond reasonable doubt that the confusional behaviour which he exhibited at the Armadale/Kelmscott Hospital was substantially due to the catalytic affect of the ingestion of illicit substances.
26 As was pointed out in R v Falconer (1990) 171 CLR 30 at 40 there is a presumption or inference that an act done by a person who is apparently conscious is a willed act done voluntarily. The presumption accords with and gives expression to common experience that the acts of a person who is apparently conscious and has the capacity to control his actions is done by choice.
27 I am satisfied beyond reasonable doubt that the accused's behaviour and actions upon leaving the hospital, and in
(Page 22)
- particular in assuming control of and driving the said vehicle, including the manner of driving, were a consequence of decisions consciously made by him, in the free exercise of his will. I do not accept Dr Kay's evidence to the contrary, particularly as his conclusions (similar to conclusions reached by some of the other expert witnesses) was based inter alia upon the invalid history provided by the accused.
- 28 My views are essentially in accordance with the conclusions reached by Dr Pullella, whose evidence generally I accept.
29 The Crown has discharged the burden upon it of demonstrating that the taking and driving of the vehicle by the accused did not occur independently of the exercise of his will, and the accused is therefore convicted as charged."
68 The decision of the trial Judge was not confined to the medical evidence. He was entitled, as he did, to take into account the appellant's behaviour and actions.
69 The appellant made a selection of a convenient vehicle to further his intention to leave the hospital. He chose to lock the doors and drive away. He was aware at times during the driving that he was being pursued. He managed to drive the vehicle at very high speeds over a considerable distance from Armadale nearly to Midland, making selections in the course of driving. He made a decision to accelerate on the wrong side of the road away from police officers pursuing him. He made a decision, albeit a late decision, to stop at a stop sign even though his speed carried him through the stop sign. Nevertheless he had to brake suddenly.
70 None of these actions are suggestive of automatic behaviour independent of the exercise of will. There was undoubtedly some confusional thinking which may have influenced the appellant into behaving as he did in a somewhat irrational behaviour. However, on the whole of the evidence it was open for the Judge to be satisfied that the behaviour of the appellant was, nevertheless, volitional. Taken together with the evidence of Dr Pullela, it was open for the trial Judge to find the appellant guilty. In consequence, the appeal against conviction should be dismissed.
(Page 23)
Appeal against sentence
71 The offence of stealing a motor vehicle coupled with the circumstance of aggravation of reckless driving carries a maximum penalty of 8 years imprisonment. The learned trial Judge selected an appropriate head sentence for the type of conduct in the order of 5 to 6 years imprisonment. He made some deductions for the fact that most of the elements of the offence were admitted and the matter went to trial on a limited basis only. He took into account the appellant's age (23) and the undesirability of having young people subjected to lengthy terms of imprisonment. He took into account a period of custody directly referrable to this offence, 24 days. He was conscious that the appellant had spent a considerable time in custody for other matters and so was conscious of the totality of all sentencing.
72 Having taken those matters into account his Honour sentenced the appellant to a term of 3-1/2 years imprisonment and made a parole eligibility order.
Grounds of appeal against sentence
73 The grounds of appeal are:
"The sentence of three and a half years was manifestly excessive having regard to the following:
1. Whilst the circumstances of the driving were serious, the degree of culpability that could attach to the Applicant was diminished by the fact that a combination of intoxication with a head injury sustained in an accident which occurred shortly prior to the theft of the vehicle lead to the Applicant being in an accute (sic) confusional state in which he was unaware of the nature and quality of his actions.
2. The spontaneous nature of the offence."
74 The appellant acknowledges that the circumstances of the driving were serious. This concession is appropriate. The reckless driving took place over a prolonged period and a prolonged distance and involved high speed, moving to the incorrect side of the road and crossing traffic. Ultimately the driving ended with the head-on collision causing injuries to the other driver which fortunately were minor.
(Page 24)
75 Reckless driving is a circumstance of aggravation on the offence of stealing. Focussing on the offence of stealing, the applicant unlawfully used the vehicle in what was a spontaneous and impulsive action without any clear purpose or direction. Clearly the stealing was initiated while the appellant was in a confusional state. There is an issue as to the extent to which the confusional state was brought about by ingestion of illicit substances or was brought about by the head injury. However, all the medical evidence (and indeed the trial Judge acknowledged) was to the effect that the head injury played some contributory part in the confusional state.
76 The trial Judge made no reference to the state of confusion during the course of his sentencing remarks. Of course he must have been aware of it. The overall circumstances of the offence, including the driving, indicate that the applicant's responsibility for the criminality of his conduct was diminished by his confusional state, the cause of which at least in part, was through no fault of his own. This fact ought to have been reflected in the sentence and failing to do so was an error.
77 In consequence, grounds 1 and 2 are made out.
78 Ground 3 is:
"3. The learned sentencing Judge failed to have sufficient regard for the application of the totality principle."
PARTICULARS
(a) The Applicant had been sentenced in October, 1999 to three years imprisonment with parole for offences of burglary which pre-dated the offence of stealing motor vehicle and reckless driving, the sentence being backdated to 23 June, 1999.
(b) The Applicant was not released on parole until 18 November 2000.
(c) The Applicant was returned to custody on 3 January, 2001 as a result of a withdrawal of surety. The sentence of three and a half years imprisonment will require the Applicant to serve a minimum of fourteen months imprisonment, which is effectively cumulative to the eighteen months he has spent in custody on the other charges.
(Page 25)
- (d) A minimum of thirty two months imprisonment is the equivalent of a seven year head sentence. Had the Applicant been sentenced for all offences at the same time, the head sentence would have been unlikely to have been seven years."
79 As indicated, the Judge made reference to the other sentences and the undesirability of lengthy sentences on young people.
80 The other involved different criminal conduct. The Judge made enquiries of counsel as to the nature of the other sentences and the issue of parole. He specifically noted the time spent in custody for other matters and said "the totality principle requires addressing".
81 I am not persuaded that the Judge failed to give proper weight to the principle. On the contrary, I consider the Judge did give sufficient regard to it.
Conclusion
82 The appeal against conviction should be dismissed. The appeal against sentence should be allowed and the sentence of 3-1/2 years imprisonment set aside. It is necessary to substitute a sentence which reflects the seriousness of the conduct viewed objectively, but take into account the appellant's diminished responsibility by reason of his mental state at the time.
83 I would impose a sentence of 2-1/2 years imprisonment. I would continue the order for parole eligibility.
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